On the surface, abortion rights have been doing well on the Supreme Court this term. Two weeks ago, the justices unanimously upheld widespread availability of the abortion pill. On Thursday, the court dismissed a case over Idaho's strict anti-abortion law, which allowed the procedure to be performed in emergency rooms across the state when a patient's health was at risk.
But both rulings were so technical and temporary that they seemed designed to be a diversion and delay to postpone a volatile issue, or at least until after Election Day.
Some abortion rights advocates called the ruling a “Pyrrhic victory” and fear it could lay the groundwork for further restrictions, whether by the court or a second Trump administration.
The Supreme Court signaled its intention to get out of the abortion business with its decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade in 2022. “The power to regulate abortion must be returned to the people and their elected representatives,” Justice Samuel A. Alito Jr. wrote in the majority opinion.
Two recent decisions were broadly consistent with this thinking, but Justice Alito himself spoke positively about Thursday's case. “It appears that the Court has simply lost the will to decide the simple but emotive and highly politicized issues this case raises. It is unfortunate,” he wrote.
Mary Ziegler, a law professor at the University of California, Davis, said that while the majority took a different view, its avoidance strategy is unlikely to last.
“What's clear this term, and likely the next, is that the fight over abortion is not going to be left to the states,” she said. “The executive branch and the Supreme Court still have a big say.”
David S. Cohen, a law professor at Drexel University, said the end of Roe was the beginning of a war in which both sides sought to win outright, meaning the Supreme Court won't be able to shy away from tough issues in the long run, he said.
“In these two cases, the Court avoided tackling the quagmire created by the overturning of Roe v. Wade,” he said of this month's rulings. “Without a nationwide right to abortion care, these contentious cases will likely return to the Court again and again. The Court will not be able to avoid the mess it has created forever.”
He added: “Neither side of this debate is going to stop fighting for the outcome they want – national rule that can be applied everywhere – so you can bet we'll see more and more of these cases coming to the Supreme Court in the coming years.”
The two rulings resolved very little.
The first ruling merely stated that the particular doctors and groups who challenged the FDA's approval of the abortion drug had not suffered harm that would give them standing to sue. The court did not rule on whether the FDA's actions were lawful.
Other challengers, particularly the three states that have already intervened in the case in trial courts – Idaho, Kansas and Missouri – will likely continue to fight, and their challenges could reach the Supreme Court fairly quickly.
The Idaho case was even more mundane: The court, taking the unusual step of agreeing to review the judge's ruling before the appeals court acted, did not think it wise to get involved at such an early stage.
The court dismissed the case for “frivolously granting leave,” which is the judicial equivalent of saying, “Never mind.” The Supreme Court could reopen the case after the appeals court, the U.S. Court of Appeals for the 9th Circuit, issues a decision.
Or it could hear an appeal of a nearly identical Texas law that was upheld by the Fifth Circuit Court of Appeals. The Biden administration has already filed a petition seeking a review of that decision.
“Both decisions seem to me like Pyrrhic victories for the Biden administration,” Ziegler said. In the abortion-pill case, Food and Drug Administration v. Hippocratic Medical Association, the court interpreted conscience protections for doctors who oppose abortion much more broadly than previous rulings, he said.
In Moyle v United States, a case on emergency abortion, Justice Amy Coney Barrett “similarly signalled the importance of conscience protections and expressed doubts about the justification of abortion for mental health reasons, both of which could have implications for the future,” Prof Ziegler said.
“These rulings are not a pure victory for abortion advocates,” said Rachel LeBoucher, dean of Temple University's Beasley School of Law.
“The core issues in both cases will undoubtedly come before the court again,” she said. “The court did not issue a substantive ruling in either decision. There is already a case underway that will examine the legality of mail-order abortion pills and uphold state abortion laws that do not provide exceptions to avoid serious injury or health threats.”
The Supreme Court's inaction may have been influenced by the upcoming elections: After all, the Dobbs decision, issued just months before the 2022 midterm elections, was a political windfall for Democrats.
Greer Donley, a law professor at the University of Pittsburgh, said the court's conservative majority may have wanted to avoid “an unpopular meritocratic abortion decision in an election year.”
Professor Ziegler said he didn't know how the election was factored into the court's calculations.
“It is unusual for the Supreme Court to hand down two important decisions in an election year, and it is reasonable to assume that the court's most institutionalist justices were seeking ways to avoid that outcome,” she said. “At the same time, there were real reasons to postpone ruling on the merits of both cases.”
She added: “That means there's no conclusive evidence that this is an election-year policy shift — after all, why bring these lawsuits in an election year in the first place? But it certainly seems possible that the upcoming election makes putting the issue off even more attractive.”
If Trump prevails, many of the issues at issue in the two cases could be resolved through administrative action. The Trump administration could roll back the emergency room care guidelines at issue in the Idaho and Texas cases and try to interpret the old Comstock Act to ban the mail-order delivery of abortion pills.
Still, whatever is said about the direction of the Supreme Court's abortion jurisprudence, Cohen said it's important not to lose sight of who won and who lost in the two most recent cases.
“The anti-abortion movement made big strides with these cases, but they failed both times,” Cohen said. “They couldn't stop the abortion pill, and they couldn't stop federal law from preempting state abortion laws. That may change in the future, but for now, they've failed both times since Dobbs.”